U.S. Bank Trust, N.A. v DeLuca, 173 AD3d 1242 [2d Dept. 2019]
The Supreme Court declined to sign the proposed order to show cause and issued an order to that effect dated November 7, 2016.
By decision and order on motion dated January 9, 2017, this Court granted the defendant leave to appeal from the Supreme Court’s order declining to sign the proposed order to show cause and stayed the foreclosure sale of the subject property pending the hearing and determination of the appeal.
“The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein” (CPLR 2214 [d]). The CPLR does not give a definition of a “proper case,” so the decision to sign an order to show cause is within the judge’s discretion (see Siegel & Connors, NY Prac § 248 [6th ed]). Upon review of the record, the Supreme Court did not improvidently exercise its discretion by declining to sign the proposed order to show cause, as the defendant failed to rebut the presumption of proper service of the relevant documents established by the process servers’ affidavits (see US Bank, N.A. v Daskal, 164 AD3d 709, 711 ; HSBC Bank USA, N.A. v Whitter, 159 AD3d 942, 945 ; Deutsche Bank Natl. Trust Co. v O’King, 148 AD3d 776, 776-777 ).
Cypress Hills Mgt., Inc. v Lempenski, 173 AD3d 830] [2d Dept. 2019]
After defaulting in this action, the defendant attempted to move by order to show cause to vacate his default, asserting that the Supreme Court did not have jurisdiction over him because he had never been served. The Supreme Court, Kings County (Devin P. Cohen, J.), did not sign the order to show cause, but nevertheless purported to deny the application on the merits in an order dated July 5, 2017. The defendant then filed a second order to show cause, seeking the same relief as his prior application. The Supreme Court, Kings County (Lawrence Knipel, J.), signed the order to show cause and allowed the motion to proceed. However, the court subsequently denied the motion on the ground that it could not overrule the decision of another Supreme Court Justice. The defendant appeals.
By declining to sign the first order to show cause, Justice Cohen, in effect, refused to permit the defendant to bring on that motion seeking to vacate his default. Consequently, the order dated July 5, 2017, purporting to deny that motion on the merits, was improper because there was no pending motion. While the defendant could have sought to have this Court review Justice Cohen’s refusal to sign the order to show cause (see CPLR 5704 [a]; Matter of Greenhaus v Milano, 242 AD2d 383 ), he instead chose to simply re-apply for an order to show cause before a different Supreme Court Justice. One Supreme Court Justice should not sign an order to show cause refused by a colleague, assuming that the supporting papers are the same. Nevertheless, under the circumstances of this case, the order to show cause having been signed by a different Supreme Court Justice, the motion thus allowed should have been determined on its merits as the order dated July 5, 2017, did not represent the determination of a prior motion by a Justice of coordinate jurisdiction.
The procedural morass which occurred here is the result of two fundamental errors. First, a court which declines to sign an order to show cause, and thus refuses to allow that motion to be made, should not proceed to act as if the motion had in fact been made. If the court declines to sign an order to show cause, that is all it should do. Second, a remedy of a party whose proposed order to show cause has been refused is to seek relief from the Appellate Division pursuant to CPLR 5704 (a). The remedy is not to simply re-submit the same application to the same or a different Supreme Court Justice.